Abdur Rahim, J.
1. The order of the District Munsif, dated 18th March 1915, directing under Section 476, Criminal Procedure Code, the prosecution of the petitioner, who was the 2nd plaintiff in Original Suit No. 96 of 1914, should, in my opinion, be set aside, on the ground that in exercising his jurisdiction he has acted with material irregularity. By the suit in question the plaintiffs sought to establish their exclusive right to derive water from a tank called Isukakattu through a particular channel for the purpose of irrigating their lands; while the defendants denied such exclusive right the plaintiffs, Claiming that their lands as well were irrigated with the water of that tank. It appears that on the 15th or 16th March, when the case of the plaintiffs was opened, there was a talk among the Pleaders on both sides as to the desirability of a compromise and in the course of such conversations or negotiations, which apparently took place in Court in the presence of the District Munsif, the second plaintiff stated that his land was known as Munnurivani Cheruvu 'Istuva' and even pointed out a place in the plan where a tank called 'Munnurivani Cheruvu' used to exist at one time. He was not then under examination, and had not been sworn. What the relevancy or importance of this fact is, not made clear upon the record; but so far as can be gathered from paragraph 7 of the District Munsif's judgment, which embodies his reasons for dismissing the plaintiffs' suit, it was not in any way decisive factor in his decision. Nor did it form the subject of an issue. All the same I am prepared to assume that the fact of plaintiff's land being known as 'Munnurivani Cheruvu Istuva' had as a piece of evidence some sort of bearing on the question for determination. The negotiations for compromise apparently failed and the case was finally taken up for trial on the 18th March, when the second plaintiff went into the witness-box and deposed in support of his case. In cross-examination on being asked if his land was called 'Munnurivani Cheruvu Istuva', he answered in the negative and denied the existence of any tank there. Thereupon the District Munsif examined the Pleaders of both sides as to what was stated during conversation for compromise. The 2nd plaintiff was again put upon oath and questioned as to what he had stated to Court on the previous occasion.
2. The second plaintiff denied having made the statement imputed to him; but the Pleaders for the defendants deposed that he did in fact make the statement. On the other hand, the Pleader for the plaintiffs was unable to say that the second plaintiff made such a statement though he admitted that somebody during the conversation said so. The District Munsif accepted the version of the conversations as given by the Pleaders for the defendants apparently as it agreed with his own recollection and straightway drew up proceedings against the second plaintiff under Section 476, Criminal Procedure Code, and sent him in custody to the nearest Magistrate.
3. When the above case was called on the next day, the plaintiffs' Pleader applied for time as his client had been committed to the Magistrate and there was no one to give him instructions. The District Munsif refused to grant any time, holding that the Pleader should have been instructed once for all and not piecemeal and also because there were three other plaintiffs in the suit who could give him full instructions, if necessary. So far as it appears, it was the second plaintiff who was looking after the suit and the District Munsif was undoubtedly quite wrong in thinking that the Pleader of a party should ordinarily be expected to conduct his client's case, more especially at the stage when evidence is taken, without the help either of the client or some competent person on his behalf who may be cognisant of the facts relating to the action. Rejecting the plaintiffs' Pleader's, application the District Munsif proceeded to pronounce judgment against the plaintiffs.
4. It is suggested by Mr. Sydney Smith who appeared for the Public Prosecutor in support of the order under Section 476, Criminal Procedure Code, that there was no material irregularity in the proceedings of the District Munsif which would justify our interfering in the exercise of our powers of revision under Section 115, Civil Procedure Code. Under the ruling of this Court, that section of the Civil Procedure Code and not Section 439 of the Criminal Procedure Code enables us to revise the order of a Civil Court passed under Section 476, Criminal Procedure Code. [See In re Chennanagoud 26 M.k 130 It is difficult for me to conceive of proceedings more irregular than those of the District Munsif in this case. It is the duty of a Judge trying a civil or criminal action and engaged in investigating issues of fact to hear all the evidence, which the parties may have to adduce, before coming to a final decision and to refrain from any action which would be calculated to hamper any party in proving his case. If a Judge on the other hand prematurely takes criminal proceedings for perjury or for a like offence against a party or his witnesses giving evidence before him, the inevitable result would be to keep away other witnesses who might be in a position to give valuable evidence and in other ways impede a fair trial of the cause. How disastrous has been the effect of the Munsif's proceedings on the plaintiffs' case is obvious from the facts I have already stated. Not only were these proceedings highly irregular bringing the case within the scope of Section 115, Civil Procedure Code, but I am also of opinion that the action of the District Munsif amounted to an abuse of the powers which the law has vested in him. Apart, therefore, from Section 115, Civil Procedure Code, it is also a fit case for interference by virtue of our general powers of superintendence under Clause 15 of the High Courts Act.
5. I may also mention that I am very doubtful whether statements made during negotiations for compromise could be properly used against a party in the way they have been used in this case against the second plaintiff. Further, the assignment of perjury in the order in question is by no means very clear or definite. If the prosecution be for making two contradictory and inconsistent statements, then it could not be sustained as the first statement was not made on oath. If it be alleged that the second plaintiff's statement that the plaintiff's land is not called 'Mnnnurivani Cheruvu Istuva' is false, I doubt if there was sufficient evidence before the District Munsif raising a good prima facie case for prosecution.
6. The order under Section 476, Criminal Procedure Code, should, in my opinion, be set aside.
7. I have had the advantage of perusing the judgment of my learned brother and much regret that after careful consideration I feel constrained to arrive at a different conclusion.
8. The provision of law under which our interference is invoked is Section 115 of the Code of Civil Procedure: it is clear that Sections 435 and 439 of the Code of Criminal Procedure have no application to an order of a Civil Court passed under Section 476 of the Code of Criminal Procedure. We have, therefore, to read Section 115 of the Code of Civil Procedure along with Section 476 of the Code of Criminal Procedure and the facts of the case as they appear in the Munsif's order, and see whether the case falls within the strictly defined limits of interference prescribed by Section 115 of the Code of Civil Procedure.
9. I find it impossible to say that the Munsif either exercised a jurisdiction not vested in him by law, or acted 'illegally or with material irregularity.' Section 476 of the Code of Criminal Procedure empowers him if he 'is of opinion that there is ground for enquiring into any offence referred to in Section 195' and committed before him to send the case for enquiry or trial to the nearest First Class Magistrate after himself making any preliminary enquiry that may be necessary--the latter being apparently an entirely discretionary procedure. That is to say, the only condition requisite to give him jurisdiction is that he should be of opinion that there is ground for enquiring into the offence in question. No doubt this opinion must be formed bona fide, i.e., with due care and caution, and if we were in a position to say that the Munsif's view were perverse, or even based on nothing more than suspicion or surmise, there might be ground for interference. But in view of the facts set out in his order, as to what occurred in open Court, it cannot be said that his opinion was not formed in good faith. I can find no ground for holding that it must be based on any particular kind of evidence.
10. If then the Munsif had jurisdiction to pass the order, can it be said that he acted 'illegally or with material irregularity?' I do not think this can be said either. I take it 'illegally' means contrary to law and 'material irregularity' means 'same material irregularity in procedure which may possibly have produced error or defect in the decision of the case upon the merits,' vide Badami Kuar v. Dinu Rai 8 A.k 111. What provision of law, either substantive or relating to procedure, does this order contravene? The section lays down nothing as to procedure beyond empowering the Court to make such preliminary enquiry as may be necessary, and even if this preliminary enquiry were obligatory and not discretionary, the requirement is satisfied by the preliminary examination of the. Pleaders.
11. I can find no illegality or material irregularity which would bring the case within the scope of Section 115 of the Code of Civil Procedure.
12. In fact, if we are to interfere at all, it must (as it seems to me) be in exercise of the general power of superintendence vested in the High Court by Section 15 of the Charter Act. This section was barely referred to, if at all, in the course of argument, but I may briefly consider its applicability.
13. This power of superintendence is, of course, of the most general character, and is not restricted by anything in the section: but as regards interference with the orders of subordinate Courts it should surely be exercised most sparingly, and only under very exceptional circumstances, otherwise the limitations contained in Section 115 of the Code of Civil Procedure (for instance) would be practically nullified.
14. I may refer to the judgment in Hem Chandra Ray v. Atal Behari Ray 35 C.d 909, in which the learned Judges seem to have felt considerable doubt as to whether Section 15 gave them any power at all to interfere with an order under Section 476 of the Code of Criminal Procedure, but no doubt at all that the exercise of such a power would be justifiable.
15. In the present case, the District Munsif has come to the conclusion in view of the petitioner's conduct in open Court, as observed by himself, and testified to by respectable Vakils examined on affirmation, that the petitioner has been guilty as a witness of a very daring piece of perjury. It is not to be assumed that no other evidence than that of these Vakils will be forthcoming against him if the case of perjury proceeds to trial: and I think it is certainly not for us in exercise of our powers under Section 15 of the Charter Act to gauge the probability of a conviction. In fact if the same order had been passed at the end of the case (or, to put it another way, if the petitioner had been the last witness to be examined), I do not think the applicability of the section would have been even suggested. There only remains to consider the stage at which the order was passed Unquestionably it is usual, and in most cases desirable, to defer the passing of an order under Section 476 of the Code of Criminal Procedure till the conclusion of the trial: and it may well be that the premature action of the District Munsif has prejudiced the plaintiffs in Original Suit No. 96 of 1914 so seriously as to justify a reversal of the decree on appeal. But this injustice can, if necessary, be set right in the ordinary course of law, if it has not already been rectified. I do not think it is a sufficient reason for our now setting aside the order under Section 476 of the Code of Criminal Procedure, or relieving the petitioner from criminal prosecution for what the Munsif has held to be a daring piece of perjury.
16. The Munsif's order may have been premature, and passed with insufficient regard to the possible indirect prejudice resulting from it. But it was neither illegal, nor irregular and, in my opinion, we should not be justified in setting it aside.
17. I would dismiss the petition.
18. We think Section 36 of the Letters Patent applies to this case, and not Section 98, Clause (2), of the Civil Procedure Code. It has been suggested that Section 141 of the Code makes Section 98 applicable to a case like this, where there has been difference of opinion in a matter in which our powers of revision are involved. But Section 141 says that 'the procedure provided in the Code in regard to suits shall be followed, so far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.' Here no doubt the proceedings, that is to say, the order under Section 476 was passed by a Court of civil jurisdiction. But it seems to us when the section speaks of 'the procedure provided in this Code in regard to suits,' it does not include the procedure prescribed for appeals. We find the Legislature has dealt with the procedure relating to suits separately from the procedure relating to appeals. The procedure relating to appeals is to be found in part VII, and the procedure relating to suits in parts I and IV. Therefore, under Section 36 of the Letters Patent, the order under Section 476 will be set aside.